New right to appeal findings of Investigatory Powers Tribunal

The British government has finally offered up its proposed changes to the way the UK's spy court operates – including the right to appeal its decisions – for approval by the country's Parliament.

The Investigatory Powers Tribunal, established in 2000, is the only judicial body that can hear complaints against the intelligence agencies and their operatives.

The government has admitted the rules that define its procedures are out of date, and last year ran a six-week consultation on a set of updated rules.

That closed on 10 November 2017, and the government has this month published its response and submitted its final version of the new rules for Parliamentary approval.

The changes include long-sought provisions for people to appeal the tribunal's decision, which were introduced in the Investigatory Powers Act 2016.

There is also an explicit power for the IPT to direct a respondent to disclose documents or information to a complainant, and a requirement that the IPT must endeavour to conduct proceedings in public and in the presence of the complainant.

The government said it received three substantive responses to the consultation, which included comments on the ability of the IPT to disclose information to spy watchdog the Investigatory Powers Commissioner and the functions that can be exercised by a single member of the tribunal.

Of the 17 amendments proposed, the government accepted five, which have been incorporated into the rules to be laid before Parliament.

These included inserting a new rule requiring the IPT to provide a complainant with a summary of its determination if it is not in their favour – if the body deems it necessary in the interests of justice.

This was prompted by one respondent's point that "there should be a strong presumption in favour of giving reasons", arguing this would "improve transparency and aid the effective administration of justice by reducing the number of groundless appeals".

Elsewhere in the responses was another call for greater transparency. This said the IPT should publish summaries of the issues of law determined in closed judgments, which the government said was a "sensible suggestion in principle" and would be considered when the next IPT report is prepared.

Meanwhile, a number of respondents complained that rules on disclosure didn't go far enough, and that the IPT didn't have the necessary powers to enforce directions, "even if it is satisfied that no harm to national security would flow from disclosure".

The government said it accepted this point, and proposed a new rule to give the IPT greater powers in this regard.

The government has also moved to close off a catch-22 situation in the proposed appeals process, which requires those seeking leave to appeal to state the grounds for appeal.

A respondent pointed out that in a situation where counsel to the IPT has been notified of an arguable error of law, but the IPT won't disclose the error, it isn't possible for the appellant to state the grounds.

"A complainant cannot give reasons when it has not seen a closed decision and is appealing only because Counsel to the Tribunal has indicated that there are arguable closed grounds of appeal," the government said in summarising the response, adding: "HM Government accepts this point."

The rules will be laid in Parliament, which needs to approve them before they come into force; until then the Investigatory Powers Tribunal Rules (2000) continue to apply. ®